United States v. Smith

69 M.J. 613, 2010 CCA LEXIS 94, 2010 WL 3787808

• Court: Army Court of Criminal Appeals
• Decided: August 5, 2010
• Docket: ARMY 20090758
• Status: Published

Opinion

OPINION OF THE COURT

GIFFORD, Judge:

A military judge sitting as a general court-martial convicted appellant, consistent with his pleas, of absence without leave (two specifications), failure to repair, wrongful distribution of a controlled substance (three specifications), and wrongful use of a controlled substance (six specifications), in violation of Articles 86 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 912a, [hereinafter UCMJ]. The convening authority approved the adjudged sentence to confinement for three-hundred and sixty-six (366) days and reduction to Private El. This case is before this court for review pursuant to Article 66, UCMJ [10 U.S.C. 866],

In his sole assignment of error, appellant queries:

WHETHER THE ACTING COMMANDER, FORT LEWIS, HAS ANY UCMJ AUTHORITY DESIGNATED BY THE SECRETARY OF THE ARMY, AND WHETHER HE HAD JURISDICTION TO TAKE ACTION IN APPELLANT’S CASE.

As discussed below, the record of trial establishes: 1) pursuant to Article 22, UCMJ, [10 U.S.C. § 822] the Secretary of the Army appointed the Commander, Fort Lewis, a general court-martial convening authority; and 2) at all times legally relevant to appellant’s case, Brigadier General (BG) Jeff W. Mathis, III, was serving as the Acting Commander, Fort Lewis. As a result, we conclude BG Mathis had full authority under Article 22, UCMJ, to convene appellant’s court-martial and retained such authority throughout all actions legally relevant to appellant’s ease. There is no jurisdictional error in the case.

I. BACKGROUND

The charge sheet reflects that on 26 June 2009, appellant’s charges were referred to tidal by BG Jeff W. Mathis, III, pursuant to Court Martial Convening Order (Corrected Copy) Number 6, dated 20 May 2009 [hereinafter CMCO No. 6].¹ Brigadier General Mathis took final action in appellant’s ease on 8 January 2010.

Court Martial Convening Order (Corrected Copy) No. 6 referenced Headquarters, Department of the Army General Order Number 10 (Gen. Order No. 10), 9 April 1981, as authority to convene general courts-martial.² Rule for Courts-Martial [hereinafter R.C.M.] 504(d)(2). See also Appendix 6, Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM, 2008]. In Gen. Order No. 10, the Secretary of the Army designated “Commander, Fort Lewis” as a general court-martial convening authority pursuant to Article 22(a)(6), UCMJ.

The record of trial includes assumption of command orders signed by BG Mathis which are dated 23 March 2009. The record of trial also includes a memorandum, dated 18 March 2009, and signed by Lieutenant General (LTG) Charles Jacoby. In this memorandum, LTG Jacoby indicates he was temporarily relinquishing command of Fort Lewis, Washington, to BG Mathis due to operational necessity based on Operation Iraqi Freedom (OIF). Among other things, the memorandum states that BG Mathis was the next senior regularly assigned officer who would remain at Fort Lewis, Washington, while LTG Jacoby was deployed and referenced Gen. Order No. 10, dated 9 April 1981.

II. DISTINCTION BETWEEN COMMAND and CONVENING AUTHORITY

Appellant does not challenge whether BG Mathis was properly serving as the Acting Commander, Fort Lewis, Washington, when he referred appellant’s charges and through the time he took final action.³ We further note the assumption of command orders signed by BG Mathis are dated 23 March 2009, prior to all legally relevant actions in appellant’s case. The assumption of command orders substantially comply with Army Regulation 600-20.⁴ As a result, we conclude BG Mathis was the Acting Commander, Fort Lewis, at all times legally relevant to appellant’s case and do not substantively analyze that issue. We further note it is well established under case law that an acting commander may serve as a convening authority. United States v. Brown, 39 M.J. 114, 117 (C.M.A.1994) and United States v. Bunting, 4 U.S.C.M.A. 87, 15 C.M.R. 84, 87 (1954). See also R.C.M. 103(6).

III. JURISDICTIONAL AUTHORITY

Appellant predicates his challenge on the relationship between the Headquarters, Department of the Army General Order relied upon by the government in his court-martial — Gen. Order No. 10, dated 9 April 1981 — and the Secretary of the Army’s issuance of Headquarters, Department of the Army General Order Number 27 (Gen. Order No. 27) on 13 November 1981.⁵ Headquarters, Department of the Army General Order Number 27 designated the “Commander, I Corps & Fort Lewis” as a general court-martial convening authority. The Secretary of the Army’s designation of “Commander, I Corps & Fort Lewis” as a general court-martial convening authority in Gen. Order No. 27 is colloquially referred to as a “combined” designation.

Appellant’s claim of jurisdictional error rests, inter alia, on a claim that the Secretary of the Army’s “combined” designation of the “Commander, I Corps & Fort Lewis” as a general court-martial convening authority in Gen. Order No. 27 essentially extinguished or subsumed the independent authority provided for the Commander, Fort Lewis in Gen. Order No. 10. Further, appellant asserts that no authority existed for LTG Jaco-by to bifurcate (ie., “split”) the “combined” authorities in Gen. Order No. 27. Stated alternatively, appellant asserts that when LTG Jacoby deployed to OIF, he had no authority to “split” the Secretary of the Army’s combined general court-martial convening authority designation of “Commander, I Corps & Fort Lewis” in Gen. Order No. 27 and allow BG Mathis to exercise the general court-martial convening authority for Commander, Fort Lewis, while LTG Jacoby exercised the general court-martial convening authority of Commander, I Corps.⁶ As a result, appellant asserts, inter alia, that while serving as the Acting Commander, Fort Lewis, Washington, BG Mathis had no general court-martial convening authority when acting in appellant’s case.

We begin by noting that, simply stated, an installation commander does not have statutory authorization under the UCMJ to convene general courts-martial. See UCMJ art. 22. [10 U.S.C. § 822]. As a result, he may do so only when designated by the Secretary concerned (Article 22(a)(8), UCMJ, MCM, 2008 [10 U.S.C. 822(a)(8)]) or the President (Article 22(a)(9), UCMJ, MCM, 2008 [10 U.S.C. 822(a)(9) ]).

In both Gen. Order No. 10 and Gen. Order No. 27, the Secretary of the Army cited Article 22(a)(6), UCMJ, as authority for designating general courts-martial convening authorities.⁷ Article 22(a)(6) is the predecessor to the current version of Article 22(a)(8).⁸ Article 22(a)(6), UCMJ, MCM, 1969, authorized, inter alia, the Secretary of the Army to designate general courts-martial convening authorities.

In Gen. Order No. 27, the plain language reflects the Secretary of the Army took action to “designate” a convening authority under Article 22 — no more, no less. See Appendix A. Headquarters, Department of the Army General Order No. 27 does not reflect that it rescinded or superseded Gen. Order No. 10. See Appendix B. Additionally, appellant has not provided evidence to the contrary. Headquarters, Department of the Army General Order No. 10 from the Secretary of the Army provides a “firm basis” for determining that appellant’s court-martial was legally constituted — ie., that the jurisdictional prerequisites have been met. See Goudge, 39 C.M.R. at 330.

In United States v. Gates, 21 M. J. 722, 724 (A.C.M.R.1985), this court examined a situation nearly factually identical to the case sub judice. This court upheld the co-existence of such orders concluding, inter alia, that operational flexibility oftentimes militates such orders. The logic and rationale of Gates remain sound.

As in the case sub judice, in Gates this court examined a claim of jurisdictional error based on the co-existence of two Headquarters, Department of the Army General Orders that separately designated general courts-martial convening authorities at one installation. One Headquarters, Department of the Army General Order No. 10, 9 April 1981, designated the Commander, Fort Campbell, Kentucky (ie., the installation commander) as a general court-martial convening authority. Id. at 723. A second Headquarters, Department of the Army General Order No. 3, 19 January 1981, designated the “combined” positions of “Commander, 101st Airborne Division (Air Assault) and Commander, Fort Campbell” (ie., division commander and installation commander) as a general court-martial convening authority. Id. The Commander, 101st Airborne Division (Air Assault), was also recognized as a general court-martial convening authority pursuant to the statutory designation of division commanders as general court-martial convening authorities in the then Article 22(a)(3), MCM, 1969.⁹ In Gates, this court concluded that all three sources provided general court-martial convening authority for the commanders at Fort Campbell. Id.

In Gates, the court observed that one individual usually served as the commander for both positions (i.e., division commander and installation commander) and received his advice from a single staff judge advocate. Id. at 723. The court further noted that, in recognition of the Army’s need for rapid deployment, the need to maintain viability of all three sources of general court-martial convening authority was maintained. Id.

Similar to the observation made by this court in Gates with regard to division commanders serving at installations, at Fort Lewis the positions of installation commander and corps commander are organizationally distinct but are typically occupied by the same individual.¹⁰ This “dual hatted” commander oftentimes receives his legal advice from one staff judge advocate. The combined designation allows the single individual serving in a dual capacity to fulfill his general court-martial convening authority responsibilities without having to specify, each time he functions as a general court-martial convening authority, which individual organization he is representing in his dual role. Over forty years ago, the predecessor organization to this court noted “[a]s a matter of common experience... the separate and different missions, functions and command responsibilities of dissimilar command, when placed or joined under a single commander, cannot be effectively carried out except with a constant awareness of the capacity in which any individual action is taken.” Goudge, 39 C.M.R. at 335. As a result, the combined designation, which is not uncommon in the Army,¹¹ promotes economy and efficiency, while enabling the requirements of the UCMJ to be satisfied (e.g., Article 25(d)(2) [10 U.S.C. 825(d)(2) ]).

In addition, the co-existence of the two sources of authority facilitates the flexibility required at installations where the combined designation involves a combat eligible unit. Specifically, should circumstances arise that result in the need for a commander serving in a dual capacity (e.g., division commander and installation commander) to depart the installation to fulfill “war fighting” duties, the independent Secretary of the Army designation of the installation commander as a general court-martial convening authority (e.g., such as the designation of Commander, Fort Lewis, in Gen. Order No. 10, 9 April 1981) would enable another individual to serve as a general court-martial convening authority for soldiers remaining at the installation. This opinion does not address issues associated with such assumption (e.g., assumption of command and, as appropriate, transfer of eases), however, as they are not at issue in the present case.

In sum, based on the plain language of Gen. Order No. 27, in the absence of evidence to the contrary, and consistent with the sound logic of Gates, we conclude Gen. Order No. 27 is the Secretary of the Army’s designation of a general court-martial convening authority for Fort Lewis that is in addition to Gen. Order No. 10.¹² Alternatively stated, Gen. Order No. 27 is a separate and distinct general court-martial convening authority designation from Gen. Order No. 10.¹³ Headquarters, Department of the Army General Order No. 27 is not, as appellant argues, a supersession of the general court-martial convening authority designation established in Gen. Order No. 10.

We further conclude that because Gen. Order No. 27 is the designation of a separate general court-martial convening authority by the Secretary of the Army under Article 22, UCMJ, no authority in the UCMJ permits a single individual serving in the dual capacities of Commander, I Corps, and Commander, Fort Lewis, to “split” the combined general court-martial convening authority designation “Commander, I Corps & Fort Lewis” in Gen. Order No. 27. Additionally, no authority in the UCMJ would permit a single individual if seiwing in the dual capacities of Commander, I Corps, and Commander, Fort Lewis, to transfer or delegate such authority. See generally United States v. Cases, 6 M.J. 950, 952 (C.M.R.1979) and Article 22(a)(4). See also R.C.M. 504(b)(4). Compare UCMJ art. 140 (which, inter alia, reflects the President, who is a general court-martial convening authority pursuant to Article 22(a)(1), UCMJ, may delegate any authority vested in him pursuant to the UCMJ and also authorize the sub-delegation of such authority). Rather, the Commander, I Corps, and the Commander, Fort Lewis, must each have discrete, identifiable authority under Article 22, UCMJ, to act as a general court-martial convening authority. Currently, the Commander, I Corps, has statutory authority per Article 22(a)(5) and the Commander, Fort Lewis, has Secretarial designated authority per Article 22(a)(6), MCM, 1969, [now Article 22(a)(8) ], as reflected in Gen. Order No. 10.

IV. ACTION BY CONVENING AUTHORITY

Because appellant’s approved sentence included confinement for more than six months, the record of trial and related documents in this type of case had to be sent to the “person exercising general court-martial jurisdiction over the accused at the time the court was convened (or to that person’s successor in command).” UCMJ, art. 64(b). [10 U.S.C. § 864(b)]. See also Gates, 21 M.J. at 724. In turn, Article 60(c)(1), UCMJ, authorizes action to be taken, under regulations of the Secretary concerned, by “a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction.” UCMJ, art. 60(c)(1). [10 U.S.C. § 860(c)(1) ]. See also Gates, 21 M.J. at 724. Article 60(e)(1) is further limited by R.C.M. 1107.¹⁴ As held below, however, the limitations in R.C.M. 1107 do not affect the instant case.

Reviewing the record of trial as a whole, the facts described in Section I firmly establish that while serving as the Acting Commander, Fort Lewis, BG Mathis convened appellant’s court-martial pursuant to his secretarial designated general court-martial authority as documented in Gen. Order No. 10. BG Mathis remained the Acting Commander, Fort Lewis, at “all times [legally] relevant to actions in connection with appellant’s case” Gates, 21 M.J. at 724. Accordingly, as the original convening authority in appellant’s case, BG Mathis had full authority pursuant to Article 60, UCMJ; Article 64, UCMJ; and R.C.M. 1107, to take final action in appellant’s ease.

V. CONCLUSION

In appellant’s case, we hold BG Mathis’ actions to have been taken in full authority of the UCMJ.

This court decides questions of jurisdiction and convening authority on a case-by-case basis. Although a truism, counsel are reminded that the holding of this case is based on the specific facts provided in the record of trial, questions of jurisdiction and convening authority are fact intensive, and facts necessarily dictate the applicable legal framework.

We have considered the remaining assignments of error and the matters appellant personally raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and find them to be without merit. The findings of guilty and the sentence are affirmed.

Senior Judge CONN and Judge HOFFMAN concur.

APPENDIX A

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APPENDIX B

APPENDIX C

Overview of Select Department of the Army General Orders Wherein the Secretary of the Army Used "Combined" General Court-Martial Convening Authority Designations

APPENDIX D

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1 . Government Appellate Exhibit 1.

2 . Court-Martial Convening Order No. 6 (Corrected Copy) was issued by the Commander, Fort Lewis.

3 . See Appellant’s Brief, p. 12.

4 . Army Command Policy (18 March 2008).

5 . The Government submitted CMCO No. 6 (Corrected Copy) during the course of this court's appellate review. During appellant's court-martial, Court Martial Convening Order No. 6, which was originally included in appellant's record of trial, cited to Gen. Order No. 27, 13 November 1981. Because appellant is questioning the jurisdiction of his court-martial, our consideration of CMCO No. 6 (Corrected Copy) is appropriate. United States v. Goudge, 39 C.M.R. 324, 330-331, 1968 WL 5081 (A.B.R.1968), relying on Givens v. Zerbst, 255 U.S. 11, 19-21, 41 S.Ct. 227, 65 L.Ed. 475 (1921).

6 .In 1981, in addition to Gen. Order No. 10 and Gen. Order No. 27, an additional Headquarters, Department of the Army General Order was issued that pertained to Fort Lewis. Headquarters, Department of the Army General Order No. 3, dated 19 January 1981 (Gen. Order No. 3) designated the Commander, 9th Infantry Division and Fort Lewis as a general court-martial convening authority. Headquarters, Department of the Army General Order No. 3 is not material to the instant case.

7 . Pursuant to the 1969 Manual for Courts-Martial, in effect in 1981, Article 22(a)(6) provided: “General courts-martial may be convened by— any other commanding officer designated by the Secretary concerned.”

8 . Article 22(a)(8) of the current Manual for Courts-Martial (2008) provides: "General courts-martial may be convened by — any other commanding officer designated by the Secretary concerned.” 10 U.S.C. § 822(a)(8).

9 . Article 22(a)(3) of the 1969 Manual for Courts-Martial provided: "General courts-martial may be convened by — the commanding officer of a Territorial Department, an Army Group, an Army, an Army Corps, a division, a separate brigade, or a corresponding unit of the Army or Marine Corps.” The current version of this provision is set forth in Article 22(a)(5), UCMJ, MCM 2008. [10 U.S.C.i 822(a)(5)],

10 . Although this opinion refers to the positions of division or corps commander, the rationale is not limited to "war fighting” positions. The rationale is equally applicable to other positions wherein a single individual may be required to serve as a dual [or more] capacity commander— whether they are "statutory” (e.g., Article 22(a)(5), UCMJ, MCM, 2008) or secretarial designations (e.g., Article 22(a)(8), UCMJ, MCM, 2008).

11 . See Appendices C and D, which provide a sample overview of Headquarters, Department of the Army General Orders using this combined designation.

12 . Appellant attempts to distinguish Gates by noting in the case sub judice the Headquarters, Department of the Army General Orders reflecting the “combined” designation was issued last in time, whereas in Gates the "combined” designation was issued prior to the Headquarters, Department of the Army General Order designating the installation commander. Such a distinction is simple legally inconsequential in the context of this case absent evidence of consequence (e.g., supersession).

13 . Headquarters, Department of the Army General Order Number 3, 19 January 1981, graphically illustrates the Army’s use of this construct (i.e., co-existence of multiple convening authorities at one installation), as well as the discreteness of the separate convening authority designations. In Gen. Order No. 3, the Secretary of the Army appoints as general court-martial convening authorities the Commander, Fort Hood, as well as Commander, III Corps & Fort Hood. He also appoints as general courts-martial convening authorities the Commander, U.S. Army Quartermaster Center & Fort Lee, as well as the Commander, Fort Lee.

14 . R.C.M. 1107(a) states "[t]he convening authority shall take action on the sentence and, in the discretion of the convening authority, the findings, unless it is impracticable.” R.C.M. 1107(a). See also Gates 21 M.J. at 724. The discussion section for R.C.M. 1107(a) delineates conditions that might satisfy the impracticability criteria.